YEARS LATER, Scott invoked the right of retaliation in defense of his military commissions. It was “a universal right of war,” Scott observed, “not to give quarter to an enemy that puts to death all who fall into his hands.” But Scott’s military commissions and councils of war did not fit the concept of retaliation very well at all. Retaliation was not an individualized practice but a collective one. It was an act of one nation aimed at an enemy nation. It could entail taking measures against enemy prisoners and enemy property, or even (in extreme cases) enemy noncombatants.
In the century before the Mexican War, however, the law of retaliation had begun to change. James Kent of New York, writing in his wildly popular 1820s book on American law, explained that in modern warfare retaliation “ought to be confined to the guilty individuals, who may have committed some enormous violation of public law.” It would be inconsistent with the spirit of the age to put “innocent prisoners, or hostages, to death” merely because “the community, of which he is a member,” was guilty of some offense. Once retaliation was so limited, there was vanishingly little space remaining between criminal justice and retaliation. All that remained was for someone like Winfield Scott to push them together.
What Scott and the U.S. armed forces did in late 1847 was to assemble scattered pieces in the eighteenth-century laws of war—the military recruiter, the assassin and the spy, the Enlightenment preference for specific instead of general retaliation—and to build from them a general principle of individual criminal liability for violations of the laws of war. Neither Scott nor Marcy had any deep interest in the coherence of the laws of war for its own sake, or in the conceptual distinctions between retaliation and punishment, or between treating individuals or states as the subjects of the laws of war. Neither man was a jurist. Scott was a hardheaded general in command of thousands of soldiers occupying increasingly dangerous foreign territory. Marcy was a practical politician best remembered today as the man who had once defended party patronage in American government on the ground that he saw “nothing wrong in the rule that to the victors belong the spoils.” But in a culture that for decades had challenged the difference between war and crime, theirs was a natural innovation. Without anyone quite understanding what was happening—without even using the phrase—Winfield Scott and the U.S. armies in Mexico had given life to the idea of the war crime.
NO ONE IN the 1840s seems to have used the phrase “war crime.” The practice of merging the laws of war with the law of crime was too new and too unself-conscious even to have been identified yet. But at least one man grasped the conceptual innovation taking place. He did not like what he saw.
A Nathaniel Currier print from the 1848 presidential campaign. Long thought to depict Zachary Taylor, whose volunteers committed numerous atrocities in Mexico, it is more likely Winfield Scott, whose military commissions in the Mexican War were condemned by his critics.
William Jay, president of the American Peace Society and son of the founding father John Jay, objected that General Scott had dangerously reintroduced the idea of crime into the laws of war. What Scott called “murder,” Jay said, was merely the killing of “any of the guard accompanying a baggage train.” Scott had redescribed the “carrying away” of the property of the U.S. armed forces as “robbery,” but Jay countered that this was precisely the kind of violence that the laws of war authorized. Scott claimed to have developed a new institutional mechanism for enforcing the laws of war. But as Jay saw it, Scott had set aside the laws of war, not vindicated them. (Indeed, in Jay’s view, the Mexican guerrillas typically did “no more” than Americans of his father’s generation had done in the Revolution.) Worse yet, Scott had done so, Jay implied, not out of humanitarian aims but to gain military advantage. By the middle of 1847, guerrilla tactics had become Mexico’s most effective strategy, if not its only strategy. Guerrilla attacks had forced Scott to deploy more than a quarter of his troops—some 5,000 soldiers—to guard his supply lines. Executing guerrillas had allowed Scott to reallocate troops from the rear to the front.
Scott himself had nothing but scorn for Jay and the peace societies. War, Scott believed, was “the natural state of man.” He called the peace societies “moral distempers,” the “cankers of a long peace and a calm world,” and listed them alongside anti-Masonry, constitutional nullification, and Mormonism as the United States’ most glaring social disorders. In response to Jay’s objections, the general observed contemptuously that armies had always put to death those who refused to give quarter to their enemies.
The difficulty for Scott was that as far as we can tell it was a bad exaggeration to say that all Mexican guerrilla parties executed U.S. soldiers. Guerrillas rarely spared Mexican wagon drivers. But that was because they treated Mexican nationals acting for the United States as traitors, not soldiers. And while many guerrillas were reported to adopt a policy of offering no quarter to U.S. soldiers, their attacks on stragglers and U.S. wagon trains were often perfectly legitimate (if particularly maddening) acts of war.
Yet if Scott dodged Jay’s criticism, he also failed to own up to the innovative change his councils of war had made. In this sense, Jay understood something that Scott had not fully grasped about the significance of his own orders in Mexico. The councils of war marked a transformation in the orthodox laws of war. The immunity of soldiers on both sides of a war was a strange kind of moral bargain: one that immunized the enemy from the moral sanctions of the criminal law. Scott and his powerful army, however, chafed at the law of war’s awkward covenant. And as it turned out, in this one respect Scott was making the same move Charles Sumner and the peace societies had made before him. Scott, like Sumner, saw crime in what many others deemed to be war.
Paris
ACROSS THE ATLANTIC, six years after peace in Mexico, fighting broke out in the Crimea on the northern coast of the Black Sea. Britain and France went to war with Russia to stop the czar’s incursions on the declining Ottoman Empire.
William Marcy, now serving as secretary of state in the administration of President Franklin Pierce, took the occasion of the war to urge the belligerents to adopt the United States’ long-favored rule of free ships and free goods. At last, American pressure seemed to make a difference. The British government agreed to the principle and exempted from capture all the goods on board neutral vessels, even enemy-owned goods, excepting contraband of war. France did the same, adopting what had long been the American view of neutral shipping in wartime.
Marcy and U.S. diplomats in the courts of Europe celebrated the triumph of America’s cherished rule of free ships and free goods. A new day in the laws of war seemed to be dawning in Europe. From France, U.S. minister John Mason exclaimed that the circumstances suddenly seemed “most auspicious to the establishment of our cherished principles of neutral rights.” Secretary of State Marcy wrote that at last there was “a fair prospect of getting” the free ships principle “incorporated into the international code.” And at the war’s close, the ministers of Europe agreed to do just that. At the Paris peace conference in the spring of 1856, the Concert of Europe codified the maritime war rules that the allied powers had adopted during the course of the war. The Declaration of Paris—signed by the plenipotentiaries of Austria, France, Great Britain, Prussia, Russia, Sardinia, and Turkey—pledged that neutral flags would cover enemy goods except for contraband. It reaffirmed that neutral goods were not liable to capture when found aboard an enemy vessel, and that blockades had to be “effective”—“that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.” With the self-aggrandizing grandiosity characteristic of nineteenth-century European international law, the Declaration trumpeted that the principles it laid down would no doubt “be received with gratitude by the whole world.” The neutral rights principles for which the United States went to war in 1812 seemed at last to have become the governing rules for war on the high seas.
BUT THERE WAS a problem. Great Britain had dealt a joker into the
game. Articles 2, 3, and 4 of the Declaration of Paris reproduced the basic view advocated by the United States since the 1790s. They adopted the American principle of free ships and free goods and codified the requirement that blockades be effective. But the first article of the Declaration set forth a different principle. “Privateering,” it announced with stentorian firmness, “is and remains abolished.”
For centuries, private vessels carrying commissions from warring states had prowled the seas, seizing enemy merchant ships as prizes and keeping the proceeds for themselves. While the pirate was a criminal, the privateer attacked enemy vessels with a commission from a warring sovereign. The privateer’s commission made him a soldier for legal purposes, entitled to the privileges of the laws of war and protected from punishment for his acts of war against an enemy. As one English commentator explained the distinction, privateers were “responsible to and punishable by the State alone from which their commission has issued.”
Statesmen and jurists had been speaking out against privateering since at least the middle of the eighteenth century. In the United States, Benjamin Franklin argued that privateering was barbaric because it was principally aimed at an enemy’s commerce, not its armed forces. The 1776 model treaty drafted by John Adams contained an article prohibiting privateering. The 1785 treaty between the United States and Frederick the Great’s Prussia banned privateering, as did Jefferson’s draft treaty with Austria the next year and a U.S. treaty with Spain ratified a decade later. Citizens’ petitions from the peace societies and their allies had urged the Congress to promote “civilization and Christianity” by abolishing privateering. As secretary of state in the early 1820s, John Quincy Adams had advocated a treaty doing just this. Indeed, privateering reproduced many of the same problems Scott and Marcy had identified in guerrilla warfare in Mexico in the 1840s. It was a form of private violence that aimed at the enemy’s commerce, not its military forces. The Declaration of Paris thus aimed to accomplish with privateering what Scott and Marcy had done with guerrilla warfare: place it outside the pale of civilized warfare, transforming it from a form of war into a form of crime.
The difficulty was that the Pierce administration believed that the United States could not afford to abandon privateering. In the most recent war with Great Britain, the War of 1812, some 517 American privateering vessels had seized around 1,350 British merchant ships and inflicted losses amounting to $45.5 million on British commerce. British ships going no farther than the Irish Sea saw their insurance rates rise by 13 percent. Now, four decades later, Marcy warned that the United States could not justifiably enter into a convention that would preclude it “from resorting to the merchant marine of the country” in the event of war. Even a cursory glance at the stunning disparities between the Royal Navy and the American naval fleet made abundantly apparent why Pierce and Marcy were so reluctant to abandon privateering. At the close of the Crimean War, the U.S. Navy consisted of barely forty vessels. The Royal Navy consisted of almost 1,000.
Given the privateering prohibition, Marcy viewed the Declaration of Paris not as a triumph of neutral rights but as a shrewd gambit by British statesmen to deprive the United States of the moral high ground. The Declaration appropriated for Britain the mantle of neutral rights and used it to criminalize a mode of warfare deemed indispensable by the United States. Writing from London, the new American minister to Great Britain, George Mifflin Dallas, seethed that the Declaration “was aimed exclusively at the great defensive weapon of the United States.” The antiprivateering article of the Declaration seemed to Dallas “the groundwork of a coercive movement by a confederacy of European sovereigns against America.” Signing the Declaration would abandon the long-standing American reliance on “voluntary action” by its citizens in wartime. At a “single stroke” it would double “the already resistless power of Great Britain’s naval means of invasion and blockade.”
Privately, British prime minister Lord Palmerston and his foreign secretary, Lord Clarendon, celebrated the Declaration as a diplomatic triumph over the upstart United States. The British, Clarendon wrote gleefully, had managed to “catch brother Jonathan in the trap which he had laid for us.”
AS IT TURNED OUT, the government of the United States would never commission a privateer again, not because it signed on to the antiprivateering principles of the Declaration (the United States never did), but because commissioning private vessels to prey on enemy shipping was an increasingly less effective mode of making war. The Declaration of Paris prohibited privateering and adopted the rule of free ships and free goods at just the moment when improvements in naval technology—the rise of steam, the advent of the ironclad ship, and vast improvements in naval weaponry—had rendered converted merchant vessels unsuited for war service. Faster naval vessels with more powerful guns made effective blockades easier to construct. And in any event, merchants had learned to transfer goods to neutral owners in order to circumvent the rules under which privateers could seize enemy property at sea. (“The capacity of carrying on war in this fashion,” one British editor wrote flatly, “has ceased.”) Preserving the authority to commission privateers at the cost of the long-sought free ships principle would thus prove to be a bad strategic mistake.
In the meanwhile, however, the lessons of the Declaration of Paris for the laws of war seemed stark. Clarendon and Palmerston had managed to do what the British had rarely accomplished in the War of Independence or the War of 1812. They had split the professed ideals of American wartime policy from its perceived interests. When Marcy and Pierce seemed to choose interests over ideals, some thought that Americans had made plain the true character of their commitments. In the United States, by the same token, the experience of the Declaration served as a rude awakening to the midcentury politics of the laws of war. For many American observers and statesmen, the Declaration revealed the laws of war to be a creature of power, not of humanitarian ideals. The laws of war suddenly seemed a body of rules for strong European states to manipulate at the expense of the weaker military forces of the United States. Marcy complained to the French minister Eugène de Sartiges that the great naval powers of Europe were acting “to subserve their own interests and ambitious projects.” George Mifflin Dallas in London accused the “combined potentates of Europe” of “forc[ing] their international code upon us.” The United States’ reliance on a volunteer military, he wrote in 1859, was at risk of being “diplomatized out of our power.” Dallas warned his fellow American diplomats to be wary of the selfless language of humanity embraced by the powers of Europe; he had learned to be suspicious when European statesmen claimed to act out of “an excess of philanthropy.”
Richard Cobden, a member of the British Parliament with pro-American sympathies, concurred in Marcy and Dallas’s evaluation. “I am afraid,” Cobden wrote in 1856, that “the law of nations has been hitherto little more than the will of the strongest.” To be sure, he added, the will of the powerful was “modified and slightly controlled by civilization.” But Cobden’s bleak observation captured the disillusioning lesson of the Declaration for American statesmen.
FIVE YEARS AFTER the Declaration of Paris, one southern state after another voted to secede from the United States of America. South Carolina did so in December 1860. Mississippi, Florida, and Alabama followed in quick succession on three consecutive days in January 1861. Before the month was out, Georgia and Louisiana had voted to secede as well. Texas did the same on the first day of February.
For eighty-five years, American soldiers, statesmen, and lawyers had expressed admiration for the laws of war, though to be sure their enthusiasm was leavened with frustration and even occasional disdain. Those who had spoken out in support of the international laws of war included men who now defended the Union as well as men who sided with the South.
Yet on the eve of the most destructive war in American history, there was reason to worry that the laws of war might fail to gain a foothold in the brothers’ conflict between North and South. For one t
hing, the laws of armed conflict were made principally for conflicts between nation-states, not for civil wars and revolutions. To this day, international humanitarian law has many fewer rules for what is now called noninternational armed conflict. There were deeper and more intractable causes for concern, as well. For more than half a century, American statesmen had constructed a law of war that sheltered slaveholders in wartime. But now slavery was the very issue that had split the nation in two. The small regular army and its tiny officer corps trained at West Point embodied the law of war principles of the previous half century. But now those officers faced the daunting prospect of trying to govern mass volunteer armies of unprecedented size in a nation still powerfully influenced by the legacy of Andrew Jackson.
Moreover, for twenty years, through the activism of the peace societies, the border skirmishes with Canada, and a war with Mexico, Americans had argued about and debated with increasing controversy the difficult moral compromises the law of war entailed. They had even initiated an experiment to reintegrate the criminal law back into the laws of combat, a move that seemed to some a death knell for the effort to regulate war by law. As a final blow, the Declaration of Paris seemed to have revealed humanitarian doctrines as cover for the interests of the European states that created them.
Most of all, the Union leadership on the eve of the war was made up of men whose views of the law were up in the air. The powerful chairman of the Senate Foreign Relations Committee was the former pacifist Charles Sumner. Only fifteen years earlier, Sumner had denounced the laws of war as pernicious and absurd. Now, as he abandoned his pacifism to fight against slavery, his righteous fury seemed to admit few limits. In the spring of 1861, the new secretary of state was William Henry Seward, the former governor of New York who had fought tooth and nail with Daniel Webster to prosecute British soldier Alexander McLeod as a common criminal. Now Seward sat in Webster’s seat in the State Department. Lieutenant General Winfield Scott was general-in-chief of the Union Army. He represented the highest aspirations of the small professional army of the antebellum United States. He was deeply versed in the laws and usages of war. But he had also set in motion a new and potentially dangerous experiment, one that had criminalized an entire class of Mexican combatants. Now in 1861 Scott would have to decide on the status of the white southerners who were taking up arms by the tens of thousands.
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